Codification over Universality: An Alternative Approach to the issue of a Uniform Civil Code
By Raunak Rai Maini
Break down the Mosque, Break down the Temple,
Break everything that can be broken,
But don’t break somebody’s heart,
For in hearts does God reside- Bulleh Shah
Venturing on a philosophical albeit poetic note, I shall attempt to discuss the apparent conflict between these two ideas that form the subject of this comment. Firstly, the conflict stems from a mere juxtaposition of these terms wherein the former evokes themes of co-existence, diversity, and accommodation — the latter connotes universality and discipline, probably via force?
In order to examine this issue in detail, Art. 44 of the Constitution¹ is reproduced here for the reader’s reference:
44. Uniform civil code for the citizens: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
On Directive Principles of State Policy
The very first attribute is the placement of the Article itself as by virtue of being under Part IV (Directive Principles of State Policy), the obligations imposed on the State are moral in nature and cannot be enforced directly in a Court of law, as reflected in Art. 37.²
Intent of the framers behind including this Part was to give direction to the Executive and the Legislature as regards the manner in which they should exercise power.³ They can, therefore, be seen as the recommendations that would further the country towards being a welfare state, as conceptualized by the Constituent Assembly.⁴
The reason for not making such principles justiciable is that they were either deemed to be impossible to enforce in court or giving immediate effect to them was considered to be beyond the means and resources of the State at that time.⁵ Interestingly, an amendment was moved by Sir B.N. Rau to make these justiciable, but it was rejected due to the emphasis on individual rights.⁶
As noted by Granville Austin, fundamental rights and directive principles have their roots in the struggle for independence and they connect India’s future, and give strength to the pursuit of social revolution in the country.⁷
In particular, the assumption inherent in Art. 44 is that there is no necessary connection between religion and personal law in a civilized society.⁸ The State can do so by virtue of the enabling provision under Art. 25(2) of the Constitution as the right given under Art. 25 is not absolute in nature, as is the case with most rights under Part III.⁹
On Legal Pluralism
While some might cite the example of the multiplicity of civil laws as a testament to India’s accommodative and legal plurality that is premised on accommodation rather than universality, I believe that this pluralism is a compromise/necessity, and not a choice.
Rather, as observed by Shachar,¹⁰ in practice, most postcolonial democracies accept the policy of cultural pluralism in the governance of the family and tailor different models of legal pluralism to govern the family by sharing authority between states and sections of ethnoreligious groups within the society.
This must be understood in the context of the partition of the country on religious lines that left millions of people stranded, and dead due to subsequent conflict. For a nation in its infancy to strip away people of their religious laws (which some consider to be one of the most important identity markers) seems to be a terribly flawed choice. India’s decision to, therefore, relegate the debate on a UCC to Part IV of the Constitution seems to be an intuitive decision to avoid unnecessary conflict, given that Pakistan was premised on a religious pedestal and was an alternative for Indian Muslims who had decided to stay back.
While the term ‘civil code’ has not been elaborated upon in the Constitution itself, it can be understood as relating to various aspects of personal relations such as contracts, property, marriage, and inheritance, as can be understood from the Constituent Assembly Debates.¹¹ Notably, the civil items not governed by religion (such as contracts) have already been codified for the country during colonial times.
Though the Supreme Court too has at times suggested the implementation of Art. 44 to ensure that it does not remain a dead letter¹², it has not advanced to the extent of giving any concrete directions for such codification, possibly owing to the deeply personal and political implications of the matter.
On law vis-à-vis social change
In an article relating to the UCC, Prof. M.P. Singh notes that the goal of gender equality is not attainable by law alone. To substantiate this, he elaborates as to how despite legal instruments, child marriages, dowry deaths and domestic violence still exist in the society.¹³
Interestingly, there is social science literature indicating that women’s access to legal rights depends largely on their socio-economic position rather than the religion that they belong to.¹⁴ Hence, premising justifications for UCC on the idea of women equality alone is insufficient, and dishonest.
From a jurisprudential aspect, Ehrlick noticed that despite there being legal centrality in criminal matters, personal practices of people were sometimes very different, and at times conflicting with the law propounded by the state. Sometimes, this informal influence was even greater than the state’s influence on people’s lives.¹⁵
This seems to have some judicial acceptance as the Bombay High Court decision in Narasu Appa Malli which holds that personal laws are not included under the definition of “laws” under Art. 13 still stands as good law.¹⁶
Analysis
As understood above, any decision to proceed with the implementation of Art. 44 is a largely political decision that could adversely or positively alter the public’s perception of the government.¹⁷ However, due to the nature of the problem itself, political will is missing albeit the competency to do so is present.
While a UCC is not urgently required to further a sense of unified identity, particularly when religious extremism is on the rise — an attempt can be made to at least codify aspects of the law that are still ambiguous. This would not only facilitate effective adjudication, bring clarity into the legal system but also further a culture of deliberation that is presently absent due to the abstract status of some laws, particularly the Shariat Application Act.¹⁸
Additionally, if any reform is sought to be done in personal laws, it should ideally flow from the legislature to avoid a situation that was witnessed post the Shah Bano judgment.¹⁹ If the judiciary attempts to dictate the parameters of such a reform, apart from upsetting the balance of powers — it would not allow the process to be in tune with the local realities of a particular area as there have been instances where Muslims (particularly Khojas and Cutchi Memons) resented application of Shariat onto them as their communities have been following Hindu Law for decades.²⁰
Instances such as those in Sarala Mudgal²¹ and Lily Thomas²² need not require a UCC to address them effectively as these issues can be remedied via specific legislation that prevents misuse of the divergence between personal laws via conversion.
To address the valid concerns of the minority community, they must be taken into confidence and the implication of the law explained to them via an extensive outreach campaign to prevent alienation and othering that such a measure could unintentionally lead to.
Concluding remarks
The UCC, at a time when it was conceptualized, was meant to forge a renewed common identity for a nation that was reeling from partition. While the intent of it was admirable, it needs to be seen whether such an identity is required at a time when religious divide has deepened.
Since it is a directive principle under the Constitution, the political timing of the process and the nature of the consultations will determine how the policy change is received by the population.
In my opinion, instead of a unifying legislation that outrightly does away with religious personal laws and replaces it with a civil one, a piecemeal legislative approach can be followed to instead codify these laws and then let change organically flow via deliberations and discussions.
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- Constitution of India, Jan. 26, 1950, Art. 44 (India).
2. 7 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 6407 (9th ed. 2020).
3. Constituent Assembly Debates, Vol. VII, pp. 476, 493–4.
4. Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.
5. Supra note 1, at 6413.
6. T..K TOPE, CONSTITUTIONAL LAW 412 (3rd ed. 1982).
7. GRANVILLE AUSTIN, THE INDIAN CONSTITUTION — CORNERSTONE OF A NATION 50–52 (Oxford, 1999).
8. Supra note 1 at 6652.
9. Supra note 1, Art. 25 (2).
10. Ayelet Shachar, Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accomodation, J. OF POLITICAL PHILOSOPHY (2002).
11. Constituent Assembly Debates, Vol. VII, pp. 549.
12. Ms. Jordan Diengdeh v. S.S. Chopra, 1985 AIR 935.
13. M.P. Singh, On Uniform Civil Code, Legal Pluralism and the Constitution of India 5 INDIAN LAW & SOCIETY REVIEW (2014).
14. Id.
15. Eugene Ehrlich, Fundamental Principles of the Sociology of Law (1936).
16. State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72.
17. Supra note 1.
18. Muslim Personal Law (Shariat) Application Act, 1937, Act No. XXVI of 1937 (India).
19. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
20. Supra note 2.
21. Sarla Mudgal v. Union of India, (1995) 3 SCC 635.
22. Lily Thomas v. Union of India, (2000) 6 SCC 224.
The author is a Year III student at the National Law University, Jodhpur.
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